Mosier v. Norton

Citations

• 83 Ill. 519

Syllabus

<p>1. Usury—how pleaded in chancery. A general charge of usury in an answer to a bill in chancery, will amount to nothing, unless facts are alleged showing wherein the usury consists.</p> <p>2. Same—pleading and, proof. The defense of usury is regarded as in the nature of a penal action, and not only is great strictness required in the pleadings, but the contract must be proved as alleged, by a clear preponderance of the evidence.</p> <p>3. Same—sale of lots at fictitious price. If a party loans money, and at the same time sells lots to the borrower at a fictitious value, taking a note for the whole, merely to secure an unlawful rate of interest on the loan, the transaction will be usurious. But the fact that a party sells property and loans the consideration to the purchaser, with other funds, affords no presumption the transaction is usurious.</p> <p>4. Pleading and evidence—variance. The rule is the same in chancery as at law, that a contract must be proved as stated in the pleadings. If the contract is alleged to be usurious, the usury must be proved as charged.</p> <p>5. Mortgage—-foreclosure—tacking prior lien paid. If a mortgagee redeems from a mortgage which is a prior lien, upon bill to foreclose his mortgage he will have the clear right to tack the amount so paid by him, to protect his rights, and if the mortgage redeemed from bore interest at ten per cent, the same rate will be allowed to the party redeeming.</p> <p>6. Same—■ liability of mortgagee in possession. Ordinarily a mortgagee in possession is only required to account for the actual receipts less such sums as he may have paid out for taxes and necessary repairs, unless it is shown that more could have been realized by reasonable diligence. He ■will be responsible for gross negligence resulting in loss to the mortgagor.</p> <p>7. Chancery—stating account. Where an account is to be taken of the rents and profits of lands in the possession of a mortgagee, and the taxes paid and repairs made by him,